The theory behind forfeiture — as I understand it — is that the taking of property connected to criminal activity acts as a deterrent, as a fine of sorts. The Times describes it this way. It
allows the government, without ever securing a conviction or even filing a criminal charge, to seize property suspected of having ties to crime. The practice, expanded during the war on drugs in the 1980s, has become a staple of law enforcement agencies because it helps finance their work. It is difficult to tell how much has been seized by state and local law enforcement, but under a Justice Department program, the value of assets seized has ballooned to $4.3 billion in the 2012 fiscal year from $407 million in 2001. Much of that money is shared with local police forces.
Police and prosecutors like it — from their perspective, what’s not to like? But it is, in many ways, an extra-legal measure — legal, to be sure, but existing outside regular due process. Whereas, someone accused of a drug crime — often cited as the most frequent use of the maneuver — must have his case heard in court and a conviction won (or plea entered) before jail time can be assigned, property doesn’t have the same rights. It gets taken on the strength of the accusation alone.
My phrasing is not accidental. Property seizure relies on the notion that the property is not just involved in the crime, but that it somehow commits the crime. It’s a notion that shifts the due process question. Prosecutors don’t have to worry that the “accused” — the car, the flat-screen TV, the house — will mount a vigorous defense, or any defense at all. The property is guilty when the prosecutor says the property is guilty.
Property owners can challenge this, but it is the now-former owner who must mount the affirmative case, must prove that the property shouldn’t be seized. This — to my non-lawyerly way of thinking — would seem to violate the Fifth Amendment, which holds that no one should be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The courts have upheld seizure rules, but the courts have granted overly wide latitude to police in a number of areas, this included. Essentially, the courts have generally said, the cops are right unless you can demonstrate they’re not.
This inevitably leads to abuses — such as the ones described by the Times, and others: cars and houses taken after relatively minor arrests, the use of forfeiture as punishment when convictions can’t be won and the use of it as a threat to pressure suspects.
I remember a conversation early in my career as a journalist in which a narcotics officer told me how excited he was that the suspect’s sports car was seized during a drug arrest. He’d now have the opportunity to drive around in a car he otherwise couldn’t and the department couldn’t afford. This was on the day of the arrest and well before any trial would take place. I was taken aback by the admission. I wish I had written a story about it at the time — I was green and probably a little worried about damaging my access to the department. (I don’t remember anything else about the case, unfortunately, just this conversation.) My point is not to attack this particular officer, but to point out how easily even the best can fall prey to the distorted incentives the forfeiture law creates.
The Institute for Justice, which brought the videos to the attention of The Times, says they show how cynical the practice has become and how profit motives can outweigh public safety.
In the sessions, officials share tips on maximizing profits, defeating the objections of so-called “innocent owners” who were not present when the suspected offense occurred, and keeping the proceeds in the hands of law enforcement and out of general fund budgets.
This, as I said, is offers distorted incentives. There may be good arguments for some forfeiture efforts — at most under extremely limited circumstances, I would argue — but as with so much that has happened with law enforcement since Nixon used the “tough on crime” line as a cudgel, empowering police with new tools (see militarization of departments, a la Ferguson) often has dangerous side effects. Police are an important bulwark in our society, protecting us from harm and keeping the peace, but they also are an arm of state power and cannot be allowed unchecked power. The current forfeiture regime allows them that and it has to change.
Hank Kalet 